Citation: Strickland v R; O'Connor v R [2011] NSWCCA 166
Court: Court of Criminal Appeal, New South Wales
Date: 28 July 2011
Judge(s): Allsop P, Simpson J, Buddin J (unanimous)
Background
Two co-offenders each pleaded guilty in the District Court to four offences arising from a series of break-and-enters committed on the same day in July 2009. Each faced one count of aggravated break, enter and steal (committed "in company"), which carries a maximum of 20 years and a standard non-parole period of five years. One applicant also pleaded guilty to three counts of ordinary break, enter and steal; the other to two such counts and one count of receiving stolen property.
Both applicants had personal histories involving early drug and alcohol dependence, difficult upbringings, and prior criminal records. Both had been participating in Drug Court programs at the time of the offences and had other sentences running concurrently. The sentencing judge in the District Court structured the sentences to reflect "special circumstances" (a finding that justifies departing from the standard ratio between non-parole period and total sentence), resulting in total effective terms of approximately six and a half years for the first applicant and just under six years for the second.
Both applicants sought leave to appeal to the Court of Criminal Appeal, arguing their sentences were manifestly excessive. The central ground was that the sentencing judge had failed to take into account that several of the ordinary break, enter and steal counts could have been dealt with in the Local Court, where the sentencing range is more limited.
Legal Issues
- Whether the sentences imposed in the District Court were manifestly excessive.
- Whether the sentencing judge erred by failing to consider that certain break, enter and steal counts fell within the jurisdictional range of the Local Court and should have been sentenced accordingly.
- How the principle of totality from Pearce v The Queen (1998) applied when structuring multiple concurrent and cumulative sentences, including Drug Court sentences running in the background.
Decision
The Court of Criminal Appeal found that the sentencing judge had erred by not taking into account that several of the break, enter and steal counts could have been dealt with in the Local Court. This was an established sentencing principle: where an offence falls within Local Court jurisdiction, the fact that it was dealt with in a higher court does not automatically enlarge the sentencing range available. The court relied on Bonwick v R [2010] NSWCCA 177 in affirming this principle.
That error was sufficient to vitiate the original sentences, allowing the Court to resentence the applicants. The Court accepted the finding of special circumstances for both applicants, given the need to allow an appropriate period of supervised parole following lengthy terms of custody. It also confirmed that the Drug Court sentences already being served had to be factored into the totality assessment.
In restructuring the sentences, the Court imposed fixed terms (without separate non-parole periods) on the ordinary break, enter and steal and receiving counts, reserving the non-parole period calculation for the more serious aggravated offence. The result was a substantially reduced total effective sentence for each applicant, with earlier parole eligibility dates.
Orders Made
Applicant Strickland:
- Leave to appeal granted; appeal allowed; District Court sentences quashed.
- Count 2a: 18 months fixed term from 18 February 2010.
- Count 3a: 18 months fixed term from 18 July 2010.
- Count 4a: 18 months fixed term from 18 December 2010.
- Count 1 (aggravated break, enter and steal): non-parole period of 2 years and 3 months from 18 May 2011; total term of 4 years and 3 months expiring 17 August 2015. Parole eligibility: 17 August 2013.
Applicant O'Connor:
- Leave to appeal granted; appeal allowed; District Court sentences quashed.
- Count 2a: 12 months fixed term from 8 March 2010.
- Count 3a: 15 months fixed term from 8 June 2010.
- Count 4a: 15 months fixed term from 8 September 2010.
- Count 1 (aggravated break, enter and steal): non-parole period of 2 years and 3 months from 8 December 2010; total term of 4 years and 3 months expiring 7 March 2015. Parole eligibility: 7 March 2013.
Key Takeaways
- A sentencing court errs if it fails to account for the fact that certain offences could have been disposed of in the Local Court; that fact is relevant to the appropriate sentencing range even when the matter is heard in the District Court.
- The Court of Criminal Appeal confirmed that the Pearce totality principle requires courts to consider all sentences an offender is currently serving, including Drug Court sentences, when assessing the overall burden of cumulative and concurrent terms.
- Where multiple counts are sentenced together and a non-parole period is set for the most serious offence, fixed terms without separate non-parole periods may be appropriate for the lesser offences to avoid unnecessary complexity while still giving effect to totality.
- Findings of "special circumstances" under the Criminal Procedure Act 1986 may be confirmed on resentencing where the circumstances warrant a longer parole period than the statutory norm, particularly where rehabilitation prospects are genuine and the total time in custody is significant.
- In dismissing the original sentences as manifestly excessive, the court reduced the total effective terms considerably, illustrating that an accumulation of individually available sentences can still produce an outcome that is disproportionate when assessed in totality.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW)
Cases:
- Bonwick v R [2010] NSWCCA 177
- Pearce v The Queen (1998) 194 CLR 610